Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 134 (CAL)

SHAMBHU NATH GHOSH v. LAKSHMI RANI GHOSH

2005-02-25

ARUN KUMAR

body2005
ARUN KUMAR ( 1 ) THE hearing stems from an application filed by the petitioner praying for setting aside the order dated 23. 01. 2004 passed by the learned Sub-Divisional Magistrate (Executive), Howrah in M. P. Case No. 2087 of 2003. ( 2 ) THE petitioner's case is that he being a co-owner in respect of the property as described in Schedule 'a' obtained a preliminary decree in partition Suit being T. S. No. 73 of 1990 in the Court of learned Assistant district Judge, now Civil Judge (Sr. Div.), 2nd Court, Howrah where his 13/ 48th share was declared, and it is now pending for Partition Commissioner's proceeding and final decree. As the O. P. tried to raise a massive construction on the said property illegally which gave rise to a serious breach of public peace and O. P. No. 12-Developer, illegally completed a multi-storeyed building particularly on Plot No. 319 of Mouza Liluah, Howrah, he filed a m. P. Case being No. 2399 of 2003 where police is yet to submit report. In m. P. Case No. 2087 of 2003, O. C. , Liluah P. S. submitted a report on 16. 09. 2003 and after hearing on 21. 08. 2004 the learned Magistrate dropped the proceeding and rejected the Naraji petition of the petitioner against police report, on the sole ground that as Title Suit being No. 73 of 1990 is pending in a Civil Court between the parties on the self-same matter, two parallel proceedings cannot continue. ( 3 ) BEING aggrieved by the dissatisfied with the said order, the present application has been filed. ( 4 ) ALL that now requires to be considered is whether the learned magistrate was justified in passing the said order. ( 5 ) MR. Diptendu Majumder, learned Counsel for the petitioner, on referring to the impugned order contended that pendency of the partition suit between the parties, now awaiting final decree and the present proceeding under Section 144 Cr. P. C. cannot in any way be said to be two parallel proceedings, as the scope and object of the proceeding under section 144 Cr. Diptendu Majumder, learned Counsel for the petitioner, on referring to the impugned order contended that pendency of the partition suit between the parties, now awaiting final decree and the present proceeding under Section 144 Cr. P. C. cannot in any way be said to be two parallel proceedings, as the scope and object of the proceeding under section 144 Cr. P. C. is quite different which is to protect the life and property in emergent situation, and as such the learned Magistrate was erred in law and fact in not passing an order restraining O. P. No. 12 in particular who happens to be the Developer from interfering with the petitioner's right over the property thereby preventing the breach of peace. Mr. D. Basu, learned counsel for O. P. No. 12, on the other hand, on drawing Court's attention to the application under Section 144 Cr. P. C. filed by his client contended that one Palatosh Fulki is the owner of the property and his client developed the property by constructing a multi-storeyed building thereon, which is admitted by the present petitioner in his application, long back in accordance with the plan sanctioned by the Municipality, and accordingly there being no breach of peace, the learned Magistrate rightly passed the impugned order. ( 6 ) NOW, Section-144 empowers the Magistrate to give direction only in three cases specified viz. to prevent (i) obstruction, annoyance or injury to any person lawfully employed, or (ii) danger to human life, health or safety, and (iii) a disturbance of the public tranquility or a right or affray. The gist of action under Section 144 is the urgency of the situation its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte, it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. In this connection, the decision in Madhu Limaye v. S. D. M. Munghyr, reported in air 1971 SC 2486 at 2496 may be referred to. As it is possible to act absolutely and even ex parte, it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. In this connection, the decision in Madhu Limaye v. S. D. M. Munghyr, reported in air 1971 SC 2486 at 2496 may be referred to. As has frequently been held, it is only in exceptional circumstances where emergency of the gravest character is made out (e. g. danger to human life, imminent disturbance of public tranquility, or a riot or affray or an urgent case of nuisance or apprehended danger) that the Magistrate would be justified in making an order under Section 144 which would have the effect of interfering with the private rights of individuals. If no emergency is found the order will be set aside. Similarly, if the grounds for action as stated in the order are either unfounded or insufficient in law, or if there is in it an absence of any near or reasonable connection between the prohibited act and the supposed danger, it is the duty of the Revisional Court to interfere. Though there is no express mention of an enquiry before making the order, as sub-section (1) specifically requires that the order should set out the material facts, it would not be poossible for the Magistrate to set out the facts unless he makes an enquiry or unless he is satisfied about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct. Reference may be made to the decision in Babu Lal Parate v. State of Maharashtra, reported in AIR 1961 SC 884 . While every endeavour should be made to uphold the rights declared by Civil Courts it would seem that as an order under Section 144 passed in public interest must necessarily cause interference with legal rights of individuals, the mere existence of a right declared by Court should not be bar to an order in derogation of that right if the eminent danger cannot be averted in any other way. ( 7 ) IN the case on hand, the ground taken by the learned Magistrate in refusing the relief that two parallel proceedings cannot run simultaneously does not appear to be correct. ( 7 ) IN the case on hand, the ground taken by the learned Magistrate in refusing the relief that two parallel proceedings cannot run simultaneously does not appear to be correct. The partition suit is for partition of the property while the object of Section 144 as discussed earlier, is to prevent some harmful occurrences or disturbance of the public tranquility or a riot or an affray. However, since there is no existence of imminent danger which may result to breach of peace, as is disclosed from the police report, there was no scope for passing any order under Section 144 Cr. P. C. in favour of the petitioner. ( 8 ) NEVERTHELESS, the remedy against an order under Section 144 is revision under Section 401 Cr. P. C. But the petitioner has come up before this Court to invoke jurisdiction under Article 227 of the Constitution. It is well-settled that this Court's power of revision under Article 227 of the constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done, and it cannot be used as appellate or revisional power. In other words, where there is a specific alternative remedy provided by the Code, the relief under Article 227 of the constitution cannot be provided. Reference may be made to the decision in Maneck Custodji v. Sarafazal, reported in AIR 1976 SC 2446 . As it appears, the petitioner took the certified copy of the order dated 06. 02. 2004 and filed the present application on 20. 5. 2004 i. e. long after the period of limitation for preferring a revisional application. Accordingly, when there was a specific remedy available to the petitioner for revision which was already barred by limitation, the present application to invoke jurisdiction under Article 227 of the Constitution is not maintainable. ( 9 ) IN the premises, in the light of the above discussion, apart from technical ground, the present revisional application being not maintainable on merit also, it be dismissed on contest but without any cost in the circumstances. Let a copy of this order be sent down at once to the Court of learned magistrate.